- (1.) We have heard Sri M.M.Rai, the learned counsel for the petitioner and Sri C.B.Tripathi, the learned Special Counsel for the State of Uttar Pradesh.
(2.) The petitioner is a registered dealer dealing with sale and purchase of shampoo used for washing hairs. For the assessment year 2002-03, under the U.P.Trade Tax Act, the petitioner imported shampoo from outside the State of U.P. and sold the same within the State of U.P.. The assessing authority, while passing the assessment order, taxed the sale on shampoo @8%. Subsequently, the assessing officer was of the view that there was an error in the assessment order and consequently initiated proceedings for rectification of the mistake under Section 22 of the Act. The assessing authority, after considering the matter, issued an order holding that the shampoo imported by the petitioner was liable to be taxed as "cosmetics" @ 16% under Notification No.2595, dated 27.8.2001. The petitioner, being aggrieved by the said order, preferred an appeal, which was allowed by an order dated 8.4.2005 in which it was held that it was not a case of rectification, and that, in any case, it could not be taxed as cosmetics. The appellate authority, accordingly, allowed the appeal and set aside the rectification order. No further appeal was filed by the Department and the matter became final. Thereafter, it transpires, that the assessing authority still had doubt as to whether the shampoo imported by the petitioner was taxable @ 8% or 12 % and, accordingly, submitted a proposal for grant of sanction under Section 21(2) of the Act. The competent authority, after considering the matter, granted permission by its order dated 7.11.2005 on the basis of which a consequential notice under Section 21 of the Act was issued on 8.12.2005. The petitioner, being aggrieved, by the order sanctioning permission to reopen the assessment proceeding under Section 21 of the Act and the consequential notice, has filed the present writ petition.
(3.) The submission of the learned counsel for the petitioner, in short is, that it is a clear case of change of opinion, which is not permissible in view of the settled position of law enunciated by various decisions of this Court as well as by the Supreme Court. It was urged, that the assessing authority had treated shampoo @ 8% covering it under Entry No.48 of the notification No.101, dated 15.1.2000 and, consequently, bringing the shampoo under another notification, which was assessable to tax @ 12% was not permissible as it amounted to a change of opinion.;